M.E. v. Sweden, 26 June 2014
Note: strong dissenting opinion by Judge Power-Forde – http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-145018
“The Court’s assessment
71.The Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, inter alia,Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102 Series A no. 215, p.34). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 of the Convention implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no.37201/06, § 125, ECHR 2008).
72.The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos.46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (see Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II).
73.The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, inter alia, N.v.Sweden, no. 23505/09, §53, 20 July 2010 and Collins and Akaziebie v.Sweden (dec.), no.23944/05, 8March2007). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see NA. v. the United Kingdom, no.25904/07, § 111, 17 July 2008).
74.As regards the general situation in a particular country, the Court has held on several occasions that it can attach a certain importance to information contained in recent reports from independent international human rights protection associations or governmental sources. At the same time, the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3. Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (see, for example, Saadi, cited above, §131, with further references).
75.Thus, in order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of the removal of the applicant to Libya, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others, cited above, §108).
(b)The applicant’s case
76.From the outset, the Court stresses that what is at issue in the present case is not a final decision by the Swedish authorities to grant or to refuse the applicant a residence permit based on family ties. No decision thereon has yet been taken.
77.The matter to be considered by the Court is whether it would be in breach of Article 3 of the Convention if the Swedish authorities were to implement the order to return the applicant to Libya to apply for family reunion from there.
78.The Court first acknowledges that it is often difficult to establish, precisely, the pertinent facts in cases such as the present one and it accepts that, as a general principle, the national authorities are best placed to assess the credibility of the applicant if they have had an opportunity to see, hear and assess the demeanour of the individual concerned (see, R.C. v. Sweden, no.41827/07, § 52, 9 March 2010). In this respect, the Court observes that the applicant’s case was examined on the merits by the Migration Board, which held two in-depth interviews with the applicant, and by the Migration Court, which held an oral hearing. Moreover, the Migration Court of Appeal considered his appeal but found no grounds on which to grant leave to appeal. Furthermore, the applicant then requested the Migration Board to reconsider his case on the basis of new information but this request was rejected by the Board. The Court notes that the applicant was represented throughout the proceedings by legal counsel who filed a number of submissions on his behalf.
79.The Court will first consider the applicant’s claim that he risks being arrested and ill-treated because he was involved in illegal weapons transport in Libya before leaving the country.
80.In this respect, the Court observes that the Government have questioned the applicant’s credibility, as did the national authorities in Sweden, which found that he had given them contradictory and deliberately false information. Thus, he had given several accounts of how and when he had travelled to Sweden and the whereabouts of his passport. Moreover, the Court notes that in November 2011 the applicant stated that following the fall of Gadhafi, the threat against him in Libya had decreased. However, during the oral hearing before the Migration Court, he claimed that there was a threat against him in Libya because he had worked in the military during the Gadhafi regime. In his submissions to the Court, the applicant has reverted to his original claim that there is still a threat against him due to the weapons transport but he has not elaborated further. Here, the Court also notes that, during the domestic proceedings, the applicant had said that he had transported weapons for the clans for more than a year, whereas before the Court, he has claimed that he had not known about the weapons in the car when he was stopped.
81.In view of the above and of the thorough examination of the applicant’s claims in this regard by the domestic authorities, the Court cannot but join them and the Government in finding that the applicant lacks credibility and, consequently, that he has failed to substantiate that he would face a real and personal risk of arrest or ill-treatment upon return to Libya on the basis of his alleged involvement in illegal weapons transport before leaving the country. In reaching this conclusion, the Court has also had regard to the change in power in Libya since the applicant left the country.
82.Next, the Court will consider the applicant’s claim that he would face a real and personal risk of being persecuted and ill-treated if returned to Libya, even for a short period of time, due to his sexual orientation and the fact that he is married to N.
83.The Court first notes that neither the migration courts nor the Government have questioned that the applicant is homosexual and that his marriage to N. is serious. It will thus proceed on this basis.
84.With reference to paragraph 80 above, the Court reiterates that the national authorities found that the applicant lacked credibility since he altered and escalated his story during the proceedings. The Government have also highlighted the changes that the applicant has made to his account during the domestic proceedings as well as before the Court. In the Court’s view, the applicant has not given a satisfactory explanation of why he has changed and added to his story over time. In particular, it seems strange that in his first submission to the Court, in December 2012, the applicant claimed that he had already lived as a homosexual in Libya before going to Sweden and had suffered beatings and two arrests by the morality police. He has never brought these claims before the Swedish authorities even though he requested the Migration Board to reconsider his case in October 2012, only a few months before raising them before the Court. On the contrary, during the in-depth interview with the Migration Board on 20 August 2010, the applicant had stated that he had lived well in Libya until his arrest and that he had planned to marry a woman in Libya in May 2010 (see above paragraph 13). Consequently, noting his changing submissions to the national authorities about his sexual orientation and who knew about it, the Court considers that the applicant has not given a coherent and credible account on which to base its examination of his claims.
85.The Court should also examine if the Migration Board and the Migration Court expressly applied the recommended test set out in the Legal Position by the Head of the Legal Department of the Migration Board since it had been issued in January 2011, before the Migration Board’s decision of 16 December 2011 and the Migration Court’s judgment of 13 September 2012. In relation to the Migration Board, the Court notes that it did not apply the test since it did not find it substantiated that the applicant was actually homosexual and involved with N. Thus, there was no need to carry out the test at all. In so far as concerns the Migration Court, the Court observes that it did not question the applicant’s sexual orientation but found that he had not substantiated that there was a threat against him in Libya. Consequently, it did not proceed to consider the remaining criteria.
86.In any event, the Court observes that the applicant has stated that he introduced N. to his family when they spoke over internet with a camera and that N. presented himself as a woman. The applicant’s family is thus aware of his relationship and marriage to N. but believes N. to be a woman since the applicant has chosen to present the relationship in this manner. In the Court’s opinion, this indicates that the applicant has made an active choice to live discreetly and not reveal his sexual orientation to his family in Libya – not because of fear of persecution but rather due to private considerations (compare criteria 6 of the test set out in the Legal Position, above paragraph 36).
87.Moreover, having regard to the country information on Libya, the Court notes that, since the overthrow of Gadhafi in 2011, the situation in Libya has been, and continues to be, insecure and unclear as to the direction the country is taking. Consequently, there is also only little and varying information about the situation for homosexuals in Libya, making it difficult for the Court to make an evaluation of this matter. Although it is clear that homosexual acts are punishable by imprisonment under Articles 407 and 408 of the Libyan Penal Code, the applicant has not presented, and the Court has not found, any information or public record of anyone actually having been prosecuted or convicted under these provisions for homosexual acts since the end of Gadhafi’s regime in 2011. Thus, while having regard to the fact that homosexuality is a taboo subject and seen as an immoral activity against Islam in Libya, the Court does not have sufficient foundation to conclude that the Libyan authorities actively persecute homosexuals.
88.Furthermore, the Court notes that the applicant has a passport and thus would not have to contact Libyan authorities for this purpose. Moreover, it stresses that the present case does not concern a permanent expulsion of the applicant to his home country but only a temporary return while the Migration Board considers his application for family reunion. According to the Swedish Government, the applicant can request priority treatment of his application for family reunion and he can also submit his application through the Migration Board’s online system which would speed up the process and reduce the waiting time to approximately four months. In the Court’s view, this must be considered a reasonably short period of time and, even if the applicant would have to be discreet about his private life during this time, it would not require him to conceal or supress an important part of his identity permanently or for any longer period of time. Thus, it cannot by itself be sufficient to reach the threshold of Article 3 of the Convention.
89.While the Court notes that there is currently no Swedish representation in Libya, it reiterates that the applicant can complete his application for family reunion online. He would thus only have to travel to a Swedish embassy in a neighbouring country for the actual interview which could be done in a few days. In such a short time-frame, the Court finds no reason to believe that the applicant’s sexual orientation would be exposed so as to put him at risk of treatment contrary to Article 3 of the Convention in Algeria, Tunisia or Egypt.
90.Having regard to all of the above, the Court concludes that substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if he had to return to Libya to apply for family reunion from there, have not been shown in the present case. Accordingly, the implementation of the expulsion order against the applicant would not give rise to a violation of Article 3 of the Convention.“
F.G. v. Sweden
The GC referral decision was taken on 2 June 2014. It is noted that the non-violation judgment of 16 January 2014 was taken by four judges while the other three issued a short but strong dissenting opinion concerning in particular the applicant’s conversion to Christianity and his fear of persecution in Iran:
“JOINT DISSENTING OPINION OF
JUDGES ZUPANČIČ, POWER-FORDE AND LEMMENS
We do not share the majority’s view that the proposed deportation of the applicant to Iran, if executed, would not engage the Respondent State’s obligations under Articles 2 and 3 of the Convention.
Whilst we have certain reservations about the consequences, for the applicant, of his prior political activities should he be returned to Iran, – noting, in particular, his claims of having been tortured there in 2007 – our main difficulty with the approach adopted by the majority is two-fold. Firstly, there is, in our opinion, an unacceptable failure to assess, thoroughly, the risk which the applicant faces arising from his conversion to Christianity. Secondly, insofar as the majority implies that any such risk, if it exists, could be avoided by the applicant’s concealment of his religious conversion, we consider that such a requirement is wholly unreasonable and no authority for such a proposition can be found in the case law of this Court.
There can be no real doubt that conversion to Christianity constitutes a serious human rights issue for any Iranian living in Iran. The Government accepts that conversion from Islam to Christianity is considered illegal under Islamic law and that it is punishable by death. It notes that those who have so converted suffer intense pressure and are subjected to serious human rights abuses on a regular basis. It recognizes that extra-judicial killings and attacks by official Islamic militias or radical groups are a serious cause for concern and it cites a number of cases in which Christian pastors have been imprisoned because of their beliefs. It concedes that converts who suffer persecution are unable to seek protection and redress from the authorities, acknowledging that on 22 September, 2010, the 11th Circuit Criminal Court of Appeals for the Gilan Province upheld the death sentence and conviction of Youcef Nadarkhani for apostasy. However, the Government also submits that as long as a person keeps his or her religious belief as a private matter, he or she does not generally run any risk.
Numerous reports of independent human rights bodies serve to corroborate what the Government has already accepted concerning Christian converts in Iran. To cite but one example, on 27 August 2013 the International Campaign for Human Rights in Iran reported that the eight-year prison sentence imposed on Christian convert Saeed Abedini had been upheld. In July 2011 while conducting a routine visit to a non-profit orphanage which his family helped to establish, the Iranian security forces arrested him and seized his passport. The Iranian courts convicted him of ‘undermining national security’ accusing him and other Christian converts of waging a ‘soft war’ against the Iranian government through their practice of Christianity in informal house churches.
Regrettably, reports of this nature are not isolated. Yet, despite the established and acknowledged risks facing Christian converts in Iran there is no proper assessment made either by the domestic authorities or by this Court of the risk which this applicant may face on account of his conversion to Christianity in the event that he were to be deported to Iran.
Firstly, at national level, the authorities have never, in fact, conducted any assessment whatsoever of this particular risk. In April 2010, the Migration Board noted that, initially, the applicant had been unwilling to refer to his religious affiliation as a ground for asylum. By use of the word ‘initially’, it is clear that at some point after the lodgment of his application the applicant had, indeed, put the fact of his conversion to Christianity in issue in his asylum proceedings. The Board, however, simply noted that he had not submitted a baptismal certificate and concluded, without any further assessment, that it was not plausible that the applicant would risk persecution in Iran due to his religious affiliation.
By the time the matter came before the Migration Court it was clear that the applicant was, indeed, raising his religious conversion as a risk factor that required to be assessed. He explained to the Migration Court why, at first, he had not wanted to refer to his religious affiliation citing his desire not to trivialize the seriousness of his belief. In view of the reference, at first instance, to the omission of any baptismal certificate, the applicant produced, promptly, to the Migration Court authentic evidence of his baptism. The certificate was dated 31 January 2010, indicating clearly, that his conversion to Christianity and his baptism had occurred prior to the first hearing of his application before the Migration Board. By offering a reasonable explanation for his initial reluctance to raise the issue of his conversion and by producing, promptly, a baptismal certificate when its absence was put in issue, it is clear that the applicant was raising before the Migration Court the matter of his conversion as a factor to which regard should be had in any assessment of his asylum claim.
Nevertheless, the majority’s judgment (§ 10) makes it clear that the Migration Court failed entirely to consider this factor or to ascribe any weight whatsoever thereto as a potential risk facing the applicant in assessing his claims under Article 3. In its judgment of 9 March 2011 the Migration Court is wholly silent on the applicant’s conversion to Christianity, focusing, exclusively, upon his political activities prior to his fleeing Iran. The failure of that court to consider in any way the applicant’s conversion to Christianity is a serious lacuna in its assessment of the applicant’s claim under Article 3.
When, subsequently, the applicant sought, specifically, to focus the authorities’ attention upon the risk arising from his conversion to Islam, the Migration Board rejected his request outright noting simply that his baptism and conversion had already been raised in the previous proceedings at domestic level. It was thus not considered to be a ‘new circumstance’.
The domestic authorities cannot have it both ways. Either they ought to have assessed the risk in the first round of proceedings once aware of the fact of the applicant’s conversion or such a risk required to be assessed as a ‘new circumstance’ when raised in the second asylum application. This want of a rigorous assessment of a serious and, potentially, life-threatening risk is inconsistent with what this Court has previously confirmed is required of domestic authorities when dealing with claims made under Articles 2 or 3 of the Convention. It was, indeed, such a lack of rigor that led the Court in the case of Z.N.S. v Turkey to find that the applicant’s deportation to Iran (which, in that case, also involved a conversion to Christianity) would be in violation of Article 3 of the Convention. The Court stated that it ‘was not persuaded that the national authorities conducted any meaningful assessment of the applicant’s claim’. We find likewise in the circumstances of this case.
There is another aspect of the majority’s reasoning that lies uneasily with respect for fundamental human rights. In § 41 of the judgment, the Court notes that the applicant had ‘kept his faith a private matter’. Against this background it concludes that there is nothing to indicate that the Iranian authorities are aware of his conversion and thus no risk for the applicant under Article 3 on this ground.
The majority appears to endorse, implicitly, the Government’s submission that for as long as the applicant does not bring his religious affiliation to the attention of the Iranian authorities by publicly practising his faith then, in all probability, no real risk should arise in the event of his deportation. This is a dangerous line of reasoning. Such an argument was rejected, unequivocally, by the Court of Justice of the European Union in its recent judgment in Bundesrepublik Deutschland v Y and Z. In that case, the Court addressed the question as to whether Article 2 (c) of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that an applicant’s fear of being persecuted is well-founded where such a person can avoid exposure to persecution in his country of origin by abstaining from certain religious practices. The Court noted that none of the rules laid down in the Directive stated that when assessing the extent of the risk of actual acts of persecution, it is necessary to take account of the possibility open to an applicant of avoiding the risk by abstaining from his or her religious practice in question and, consequently, renouncing the protection which the Directive is intended to afford to an applicant by conferring refugee status. The Court concluded:
It follows that, where it is established that, upon return to his country of origin, the person concerned will follow a religious practice which will expose him to a real risk of persecution, he should be granted refugee status, in accordance with Article 13 of the Directive. The fact that he could avoid that risk by abstaining from certain religious practices, is, in principle, irrelevant.
The same line of reasoning ought to apply when assessing a risk of persecution under Article 3. National authorities cannot reasonably expect from an applicant that he or she abstain from the exercise of the fundamental right to religious freedom and conscience in order to avoid treatment prohibited under Article 3.
For an asylum seeker to have to conceal his religious convictions if returned to his country of origin or to exercise reserve in the expression of his convictions was found by the Court of Justice to be ‘an unreasonable expectation’ and one that was not consistent with the law of the European Union. We consider that there is nothing under the case law of this Court which holds otherwise when it comes to the European Convention on Human Rights.”